Criminal Defense

As an attorney, I am frequently asked about whether a particular police search action was legal, or if the police had the right to take something owned by my client from them.

Whenever this question comes up, it is helpful to have a basic understanding of the rights each of us has under the U.S. Constitution.

The fourth amendment to the U.S. Constitution provides that:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This applies to all law enforcement officials, including state and local police, and F.B.I. agents.

So, in order for a police search to be constitutionally valid, a judge must have issued a valid search warrant (upon probable cause, supported by oath or affirmation), unless there is a valid exception to the warrant requirement (more on this later).

Let’s break this down a little further:

Search warrants: requirements

A search warrant must be issued by a federal or state judge, and gives the police the right to search for items that may be evidence of a felony or evidence that a particular person committed a felony.

As the constitution tells us, search warrants must specifically describe both the area to be searched and the item(s) being searched for.

Search warrants: validity

However, just because a search warrant was issued does not mean that it is a valid warrant!

In some cases of police misconduct, a police officer will intentionally mislead a judge about the facts to get the warrant. In other cases, a warrant might not be specific enough about the area being searched or the item(s) being sought.

In still other cases, warrants may be invalid because the issuing judge was biased in some way.

Search warrants: “knock-notice” rule

In California, even with a valid search warrant, the police can only use force to carry out the search warrant if, after telling you about their purpose and intent, you refuse to let them enter.

Police may overstep their authority in this area if they fail to state their purpose for being there, if they use force while stating their purpose or if they enter your home or car while the warrant is being issued.

Exceptions to search warrant and knock-notice requirements

If an exception exists, the police do not need to obtain a search warrant from a judge before conducting a search. Valid exceptions include:

Inspection searches at international borders

Searches/seizures done with voluntary consent

Searches/seizures incident to a lawful arrest. This includes situations where the police are searching for criminal evidence that may otherwise be destroyed, or situations where there may be weapons that could be used against the police

The “automobile exception”, where the police have probable cause to believe there is criminal evidence in a vehicle

The “plain view” exception says that, while police are conducting a search that is otherwise legal, they can search obviously incriminating other evidence that is in plain view

In emergency situations where a search is necessary to prevent serious property damage or physical harm, or to locate a fleeing suspect

Searches where there is otherwise no reasonable expectation of privacy. You generally do have an expectation of privacy in your home, your cell phone, your computer, a hotel room or in a tent. You generally do not have an expectation of privacy under the law when it comes to public places, things you have thrown away or otherwise abandoned, in the contents of a stolen vehicle, or the contents of a vehicle in which you do not have any ownership interest.

The “Exclusionary Rule”

If you and your attorney believe you were the victim of an unlawful search or seizure, your attorney may invoke the “Exclusionary Rule” to ask that the evidence be excluded in your case. If the evidence is successfully suppressed, it cannot be used against you in a criminal trial.

The Exclusionary Rule applies both to evidence found during a search that wasn’t valid and to evidence that was discovered indirectly through an illegal search. This is sometimes referred to as the “fruit of the poisonous tree.”

Conclusion

You have protections under the U.S. constitution, but a determination about whether a police search and seizure action was valid will depend on a variety of circumstances, as described in this article.

You deserve to have an experienced criminal defense attorney behind you every step of the way. If you believe you may have been the victim of an illegal search and seizure action, contact us today.

You’ve probably seen old movies of people being tortured so that they’ll confess to crimes they may have committed. In the past, suspects of crimes had to undergo third-degree abuse by being deprived of water, food and sleep in an effort to get them to confess. But today, instead of using these harsh techniques, more sophisticated methods are used.

A popular method known as the Reid technique is often used in making people confess to crimes. This tactic, which is the most widely used interrogation method, entails questioning suspects for evaluating their credibility. Instead of using a question-and-answer format, the interrogator speaks compassionately in an effort to make a suspect more at ease so that it’s more likely he or she will tell the truth.

To do this, the interrogator tries to present reasons for why a crime may have been committed. In other words, interrogators try to put themselves in the shoes of suspects. The Reid technique is designed to build rapport with suspects. The interrogator is specially trained to observe a suspect’s body language in detecting signs of anxiety and lying. Nine steps are involved in this technique, although many of these steps overlap.

The Reid technique is often effective in getting information on a crime for suspects who probably would have been unwilling to be truthful. On the other hand, some critics of this tactic contend that it can lead to innocent people giving false confessions.

The PEACE Method

An increasing number of police officers, in countries such as Denmark, the United Kingdom and New Zealand, use a relatively new tactic called “The PEACE method.” This procedure involves gathering a lot off information, rather than simply getting confessions from suspects. The letters in “PEACE” stand for preparation and planning; engage and explain; account; closure and evaluate. It’s similar to a journalistic method, yet it’s extremely straightforward.

The method works on the assumption that the more untruths that suspects tell, the harder it is for them to remember what they’ve said. It’s based on the idea that just a single conflicting detail will eventually destroy a liar’s entire web of fabrications.

Misconception

Can police officers ever lie? That’s what many people still believe, but this is an old urban myth. In fact, lying is another technique that’s used in getting confessions from suspects. Actually, there isn’t any law that says that police officers are restricted to always telling nothing but the truth.

Considerations and Warnings

There are some groups of people who are more at risk for making false confessions. These include mentally challenged individuals, juveniles and children.

Law enforcement officers are not allowed to make threats to suspects, such as threatening to forbid them to see their family if they don’t confess. Furthermore, police cannot say that if a suspect confesses, he or she will be charged with a less severe crime.

Whenever officers interact with people, informal questioning can take place. For example, let’s say you’re stopped by a police officer, and you’re unsure of the reason why. Always assume that you may be suspected of committing an offense.

When officers question suspects at police stations, they typically use the Reid technique.

If you’ve been charged with or accused of a crime, you should never offer a statement to the police if there’s no attorney present with you. You don’t want to say anything that might incriminate you later.

Simply state that you don’t want to give a statement, and that you’re using your right to remain silence. Additionally, request a criminal defense lawyer.

A qualified and highly experienced criminal defense lawyer can help you in determining if you need to say anything at all. If speaking with law enforcement is necessary, your lawyer can advice you on what to say, as well as investigate your case. Don’t hesitate to contact us and learn more about our wide range of legal services.

People who feel unsafe and threatened from others often get protection orders. In simple terms, a protection order, also called an OP or order of protection, is a legal paper that a judge issues, involving rules, preventing contact between a restrained person and a protected person.

The restrained party is the defendant, while the protected party is the individual who is seeking protection. In many cases, protection orders are waived or modified. Here’s how a protection order can be changed or dropped, along with some other important considerations and warnings.

Types of Protection Orders

The two main kinds of protection orders include no-contact orders and peaceful contact orders.

In a no-contact order, a defendant is unable to have any contact at all with the protected person.

There’s also a peaceful contact order. This is when a judge makes needed adjustments that address specific conditions. In other words, there may be some form of limited contact.

Getting a Protective Order Modified or Dropped

Victims who are named in protection orders can ask a court to modify or drop a protection order. This entails the removal of some conditions or all of them. Because it’s a complex procedure, it’s best to use a qualified criminal defense lawyer.

Plaintiffs who have asked for the protective order can’t change the terms in a protection order just by giving defendants permission to have contact privileges, again. They must ask for changes by addressing a judge or an Assistant DA (District Attorney.)

They’ll need to explain why they want to make changes to a protection order. Furthermore, they need to state that they have willingly made their decision on their own free will and weren’t coerced into doing so.

After plaintiffs are asked if they’ve discussed their decision with a victim specialist, they need to sign a petition. The court clerk sets up a court hearing, at least 10 days later, in which both parties must attend.

It’s at this hearing that a judge determines whether or not to grant the requested changes. A judge may fully change the protection order, make partial changes or deny modifications.

Is a Protective Order the Same Thing as a Restraining Order?

Many people think a protection order is the same thing as a restraining order, but they’re somewhat different. Both of them are used for restraint purposes.

The main difference is that protection orders entail much more extreme court rulings that are used in preventing family violence and are designed to protect the life, emotional welfare and limb of victims of domestic violence.

How to Protect Yourself and Prevent Problems

If you’re a defendant, you’ll need to protect yourself because violating a protection order can result in new charges being filed against you, besides getting arrested. For example:

In addition to avoiding the plaintiff’s place of residence, be sure to stay away from areas where he or she frequently goes, such as a workplace or school.

If you’re in a public place, such as a store or restaurant and see the protected party, leave immediately.

Avoid any disagreements with friends or family members of the protected person, and never send emails, letters or faxes to this plaintiff.

If you receive an email from the plaintiff, hand it over directly to your attorney.

If the protected person tries to call you, hang up promptly and inform your lawyer of the call. Don’t even try to patch up differences.

Considerations and Warnings

Both the defendant and the plaintiff need to understand that filing a petition doesn’t change an order’s terms.

A protective order isn’t a requirement for calling 911. On the other hand, police officers tend to respond faster when callers say that they have a protective order.

Protective orders can be increased, as well as decreased.

Being served with a protection order can be overwhelming, but you don’t have to face this problem alone. If you’ve been issued a protection order, call us. Our qualified, experienced criminal defense team serves the greater San Diego area. Please contact us, and let us explain how we can help you.

When you’re scheduled to appear in court–whether it’s for something as minor as a traffic violation that you’re fighting or something as major as a felony charge–it’s imperative that you show up on your court date. Unfortunately, it’s not uncommon for people to forget about a court date or face extenuating circumstances that prevent them from attending. If this is a situation that you’re currently in, then you might be wondering, “what do I do if I missed a court date or have a bench warrant?”

What is a Bench Warrant?

If you’ve already missed your court date, there’s a good chance that the judge as issued what’s known as a bench warrant. When you have a bench warrant, this means that police officers are legally able to arrest you and hold you in jail until you take care of your missed court appearance. A bench warrant is similar to a traditional arrest warrant with the exception that bench warrants are almost explicitly issued as a result of a missed court appearance.

Simply put, if you missed your court date and now have a bench warrant out, the next time you get pulled over or have any other police encounter, there’s a good chance you’ll be going to jail.

Potential Consequences of Missing a Court Date

Nothing good typically comes out of missing a court date. At the very least, you will have a bench warrant issued for your arrest. However, there are a number of other circumstances you could face as a result.

For starters, failure to appear in court can result in the addition of more charges and fines. You may also be required to pay a higher bond or forfeit any bond you posted to get out of jail in the first place. In serious circumstances, your ability to post bond could be revoked entirely and you could be forced to stay in jail until your case in heard in court.

In some states, your driver’s license can even be suspended or revoked upon failing to appear in court.

The Importance of Acting Quickly

If you’ve missed a scheduled court date for any reason, it’s imperative that you act quickly in getting the situation taken care of. Don’t wait until the next time you’re pulled over when you may be on your way to work or even have children in the car. Instead, be proactive in taking care of your bench warrant and the judge will likely be more understanding than if you were to ignore the situation altogether.

In most cases, you can call your local court office and arrange to have the matter taken care of. This may mean scheduling a time to come in a pay your bail so as to avoid being arrested again and have your warrant recalled.

Why Hire an Attorney?

Before you call the court, however, it’s a good idea to begin working with a reputable defense attorney. With the proper legal guidance, you may be able to appear directly at an arrangement as opposed to being arrested on your bench warrant. Furthermore, an experienced attorney may be able to get an arraignment scheduled right away, rather than you having to be arrested and wait for another trial. Of course, this can all vary greatly on a case-to-case basis.

Missing a court date is never beneficial, but what’s done is done. Your next step is being proactive in getting the situation handled properly. For assistance with taking care of your bench warrant for a missed court date, please contact us today. Our hard-working and experienced attorneys are here to help.

If the police stop you on the street, do you have to talk to them? This is a common question that many people have. There are many reasons as to why a police officer may approach you in public and begin talking to you. In most cases, he or she will be trying to gather information to solve a potential crime or identify a suspect. Rarely will a police officer approach a person to simply make “small talk,” even if it appears that way.

By understanding your rights when stopped in public by a police officer, you can make sure you’re not taken advantage of.

Exercising Your Right to Remain Silent

First and foremost, understand that under the Fifth Amendment of the United States Constitution, you always have the right to remain silent when speaking to a police officer. You’re never under any obligation to speak to an officer, let alone answer any questions.

Even if you haven’t committed a crime, it’s generally best to exercise your right to remain silent if you’re ever approached and questioned by an officer in public. You can do this by simply responding to the officer’s attempts at conversation with something along the lines of, “I wish to remain silent.” If he or she persists with trying to get you to talk, continue to express your right to remain silent.

What if You’re Asked for Identification?

While it’s true that you’re under no legal obligation to talk to a police officer, there are some cases where you may be legally required to provide identification to him or her. California is one of many states where you don’t need to require ID unless the officer:

has detained or arrested you

has pulled you over in your vehicle

Therefore, if an officer has randomly approached you in public and asks for identification, your first question should be, “am I being detained or am I free to go?” If you’re being detained (this means the officer has probable cause to believe you’ve committed a crime), then you will be required to show ID. Failure to do so could result in a criminal charge. Still, this doesn’t mean that you’re required to speak with the officer. Let him or her know where your ID is located or ask for permission to reach for it.

Asking for a Lawyer When Being Detained

If it turns out that you are being detained for any reason, again, this still doesn’t legally obligate you to answer any questions or speak with officers. In fact, now would be a good time to ask for a lawyer, since you’re going to be criminally charged and officers/detectives will likely attempt to further question you once they take you to jail for booking.

Even if an officer claims he or she can “cut you a break” if you answer some questions, elect to remain silent and let them know that you won’t speak without an attorney present. In reality, a police officer can’t cut you any breaks, as the charges you face are ultimately in the hands of the prosecutor working on your case–not the arresting officer.

By refusing to speak until an attorney is present, you can be sure that you’ll be well advised and protected when handling your case.

The Bottom Line

The most important thing to remember here is that you are never required to speak to a police officer–even if you’re being detained. Depending on the circumstances, you may need to show ID, but you don’t need to answer any questions. If you’re arrested, always ask for an attorney and don’t answer any questions until one is present.

For further assistance with protecting your rights during police encounters, contact us today.

Criminal Law Library

Domestic violence is a serious problem for everyone involved. Our goal at the Law Office of Jamahl C. Kersey Esq. is to resolve the complicated issues surrounding domestic abuse efficiently and effectively for men, women and children, and particularly for those falsely accused of domestic abuse.